Ekhaya Youth Project, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 15, 2016

15-CA-155131 (N.L.R.B. Jul. 15, 2016)

JD–69–16
New Orleans, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EKHAYA YOUTH PROJECT, INC.
and Cases 15–CA–155131
15–CA–162082
DALANA ZIPPORAH MINOR
An Individual
Amiel Provosty, Esq.,
for the General Counsel.
Michael J. Laughlin, Esq., Metairie, Louisiana
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in New Orleans,
Louisiana on May 2 and 3, 2016. Dalana Zipporah Minor1 filed the initial charges giving rise to
this case on June 29, and October 16, 2015. The June 29 charge alleged that Respondent put her
on administrative leave on June 18, 2015 and then discharged her on June 22 in retaliation for
protected activities. Subsequent charges and amended charges repeated these allegations and
added an allegation that Respondent maintained rules that violated the Act in its employee
handbook and corporate compliance program, and several other Section 8(a)(1) allegations.
The General Counsel issued a complaint on October 30, 2015 and amended complaints
on January 27 and April 18, 2016, 2 weeks before the hearing. At the start of the May 2, 2016
hearing, the General Counsel moved to amend the complaint to allege that Respondent violated
the Act by terminating Nicholas Davis. The termination of Davis was not mentioned in any
unfair labor practice charge. Respondent terminated Davis on the same day as it terminated
Minor, for engaging in some of the same conduct as Minor.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 Minor also goes by or has gone by the names Zipporah Legard, and Dalana Patrece Minor.
JD–69–16
2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, which has its main office in New Orleans, is a social service 5
agency. It provides mental health services to youth and their families throughout the State of
Louisiana. It annually derives gross revenues in excess of $500,000. Respondent purchases and
receives at its New Orleans facilities goods valued in excess of $5,000 directly from outside of
Louisiana. Respondent admits, and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.10
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent hired Nicholas Davis on May 14, 2015 as Executive Assistant to its Chief
Executive Officer, Darrin Harris. Harris terminated Davis on June 22, about six weeks later.215
Respondent hired Dalana Zipporah Minor on May 13, 2015 as central office
administrator at its headquarters’ office on Bienville Street in New Orleans.3 Minor reported to
Chief Operating Officer Vanshawn Branch. He suspended Minor on June 18 and then
terminated her on June 22, the same day CEO Harris fired Davis. Minor’s job duties included 20
responding to correspondence and coordinating with Respondent’s vendors. Respondent’s
central office in which Minor worked was a converted residence. She shared an office with
quality assurance specialists Yvette Frasier and Stephanie McGrew,4 and Kendra Graves,
Respondent’s payroll processor.
25
At 1:20 a.m. on June 18, 2015, COO Branch set the following email to employees Minor,
McGrew, Frasier and Graves:
Please do not close the door to the Corporate Compliance Office. No meetings should be
held in the Corporate Compliance Office without prior authorization from your 30
immediate Supervisor. Any meeting held by Ekhaya Youth Project should have a sign-in
sheet and meeting minutes. This Office door should never be closed by any of the
individuals seated in the Corporate Compliance Office or any other office unless the
Manager of the department orders a meeting.
35
G.C. Exh. 4.
Branch apparently sent this email after learning that Stephanie McGrew had closed the
door to the office after Kendra Graves began shouting on the previous day. Graves became upset
when Minor showed her Minor’s job description, which indicated that Minor would be 40
supervising Graves, Tr. 161-164.

2 Davis testified that he was hired on about April 10, 2015. Respondent’s termination notice lists
May 14 as his hire date. Moreover, Davis testified that he met Minor at an employee orientation. Thus, I
conclude they were hired at about the same time in May.
3 Respondent’s employees were nominally employed by Canal Human Resources.
4 McGrew was terminated on June 22, 2015, the same day Davis and Minor were terminated.
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3
At 3:33 a.m., Branch sent another email to Ekhaya staff:
Any emails forwarded and replied to by any Central Office Staff member
must be carbon copied to the COO. Please be sure to follow the policy and
procedure listed in this email. This policy is effective Thursday, June 18,5
2015. In the event the email did not include the COO, please be sure to
include the COO when replying. Responsiveness is required during the
hours of 9am - 6pm and the promise to communicate will be exemplified
via operation of the policy stated in this email.5
10
Even prior to this email, Respondent had the ability to access all emails sent and received
by employees using its email system. Vanshawn Branch testified that he issued this email policy
to assure that assigned tasks were completed and completed properly, Tr. 382.
On June 18, 2015, Respondent’s Chief Operating Officer, Vanshawn Branch and 15
corporate compliance officer Nora Rowan were conducting staff training at Respondent’s office
in Houma, Louisiana. Minor was at her desk at the Bienville office and Davis was
accompanying CEO Harris on a trip to Monroe, Louisiana. Between 12:25 p.m. and 1:09 p.m.
Minor and Nicholas Davis exchanged the following text messages, G.C. Exh. 10.5-10.11:
20
Minor: R u n the loop about what’s going down here?
Davis: A little I heard they had an argument6
Davis: What’s up25
Minor: We have 2 have a surprise staff meeting on Monday. I think Mr. Branch hates
Yvette. I’ve been told my position is redundant by staff bc they don’t need (want) 2b
supervised. Total clusterfuck.
30
Minor: I just want 2 order supplies, make the office look cool, have everything run like a
proper business. The latter goes against my anarchist principles.
Davis: Why does Mr. Branch hate Yvette
35
Davis: I love her
Davis: Ask her to text me
Minor: No idea. I don’t know anything except I just need everyone 2 chill and get along.40

5 Complaint paragraph 8(a) alleges that this email violates Section 8(a)(1) of the Act.
6 According to Minor this refers to an argument between Stephanie McGrew and Vanessa Summler,
Respondent’s Claims Manager. The argument apparently related to Yvette Frasier’s documentation of
her lunch break.
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4
Davis: They check emails so I don’t want to give her my number or talk via email with u
all
Minor: Omgg despite the fact they can check emails, they have implemented this new
policy where we have CC Mr. Branch on EVERYTHING.5
Davis: I really don’t like him, he doesn’t know his job forgets to do stuff assigned to him
then wants to walk around like he’s a big shit
Davis: He attempts to be little people who don’t have a degree an he doesn’t even have 10
one
Davis: I believe he doesn’t like Yvette bc she’s pretty, intelligent and a woman
everything he want to be
15
Minor: I dunno. Sometimes he bugs me but he’s not going anywhere given the
circumstances. I think Yvette challenging him is a poor career move if she wants 2 keep
working with them. But I really want 2 stay out of it but I think I’m trapped n it so oh
well.
20
Davis: To challenge a supervisor when they are wrong is not wrong, he just feels
because of his title he is entitled to be automatically right
Minor: Yeah, but u gota b way sneaky about it. It’s like a got damn Disney villain
scenario. “Sire perhaps we could try capturing Aladdin by…” “Cease your chatter, fool!”25
Davis: I see what your saying.
Shortly after this exchange Minor laid her head down on her desk and closed her eyes.
After a while Vanessa Summler entered the office and took a picture of Minor. Summler 30
testified that Minor was asleep. Minor testified that she was not.
According to Minor, Summler asked her why she was not answering the phones. Minor
told her she was on break. Summler was angry and sent Minor an email at 3:09. In this email,
Summler informed Minor that it was her responsibility to answer all incoming telephone calls 35
and maintain a log of them. Summler reported to Branch that she saw Minor sleeping at her
desk.
Sometime in the afternoon of June 18, Branch left Houma. On his way to New Orleans,
Kendra Graves called him and told him that Minor and Davis were having a conversation about 40
his sexual orientation that was derogatory. Graves mentioned that Minor and Davis had
exchanged text messages pertaining to this subject, Tr. 86, 371. Branch directed Graves to send
him an email about the conversations between Minor and Davis.
At 4:05 p.m., Kendra Graves sent the following email to Branch:45
JD–69–16
5
There seems to be some unprofessional rapport happening
between Zipporah Minor and Nicholas Davis. Their conversations
are regarding a romantic relationship between Mr. Branch and
Mr. Harris. They talk back and forth about Mr. Branch only
having his position based on this relationship with Mr. Harris5
because he is unqualified. There was some talk of Mr. Branch
wearing dresses, and being uneducated. Zipporah also seems to
find humor in the fact that Mr. Branch "doesn't like Yvette."
(Yvette Frazier) Zipporah has also been asking individuals
around the Central Office if they knew anything about the10
romantic relationship between Mr. Harris and Mr. Branch.
Employer Exhibit 7.
Graves did not testify in this proceeding. However, in this proceeding, Minor did not 15
deny discussing the texts with coworkers or gossiping about Branch’s sexuality. I thus find that
the content of Graves’ email is accurate.
Branch testified that while he was driving from Houma to New Orleans, he received
several other phone calls complaining about Minor. Branch testified that Yvette Frasier 20
complained to him that Minor was discussing Frasier’s salary publically.7 Branch testified that
Minor was assigned to assist with payroll processing and as a result had access to employees’
personnel records.
When Branch arrived at the New Orleans office he summoned Minor to a meeting. 25
Sumler was also present. The first thing he did was to ask Minor about her conversation that day
with Davis, Tr. 176. Branch then asked to see Minor’s cellphone. After initially resisting, Minor
showed Branch the text messages. Branch asked Minor to forward the texts to him; she refused.
Branch scrolled through the text messages and discussed them with Minor. At some 30
point during the meeting, Minor and Branch had a discussion about Minor discussing other
employees’ salaries, Tr. 248. The record is very unclear as to what was said. Branch’s version is
that Minor was assigned to assist with the preparation of Respondent’s payroll. He testified that
he received a complaint from Frasier that Minor was discussing her salary publically in the
office. Further, Branch testified that he told Minor that she was not to disclose any person’s pay 35
rate. Minor testified that she denied discussing any employee’s salary but her own. Tr. 179-80.
Branch ended the meeting by telling Minor to go to her desk, pack up her belongings and
leave the premises. Otherwise, he threatened to call the police. After she left the building, Minor
forwarded the text messages between her and Davis to Branch.40
At 8:23 p.m. Branch sent a text message to Minor informing her that she was on
administrative leave pending further investigation. He also texted her that she should not talk to
the other staff members because it might affect the investigation.
45

7 Neither the General Counsel nor Respondent asked Frasier about this when she testified.
JD–69–16
6
Respondent’s investigation
Nora Rowan, Respondent’s corporate compliance officer conducted an investigation of 5
Minor’s conduct. She did not interview Minor or Graves, but spoke with Branch, Frasier and
Sumler. She did not take written statements from any of these people until after Minor filed her
initial unfair labor practice charge. Rowan also reviewed the June 18 text messages between
Minor and Davis and discussed them with Branch.8
10
Respondent terminates Minor
On June 22, 2015, Respondent sent Minor a letter terminating her employment and a
disciplinary documentation notice, G.C. Exh. 9.
15
The letter sets forth the portions of the employee handbook and corporate compliance
program which were allegedly violated by Minor. The disciplinary documentation notice states
the specific reasons for Minor’s termination as follows:
Incident 1: Ms. Minor was witnessed sleeping at her desk by multiple employees.20
Incident 2: Ms. Minor was regularly engaged in loud non-work related conversation.
She was verbally warned and advised to stop participating in such conversation by her
Supervisor, Mr. VanShawn Branch. The behavior did not cease as advised.
Incident 3: It was brought to the attention of the Supervisor, Mr. Branch that Ms. Minor
had engaged in several inappropriate conversations with fellow employees, particularly 25
Mr. Nicholas Davis, Executive Assistant to the CEO. These conversations were proven
to include gossip and misinformation regarding Ekhaya employees/Supervisors’
professional abilities, salaries, and personal lives, including but not limited to a belief of
undeserved promotions, accusations of mistreatment of an employee based on personal
like/dislikes, and assumptions about sexual orientation and inter office relationships. 30
Multiple texts regarding these topics were continually exchanged between Mr. Davis and
Ms. Minor leading to what would be considered an inappropriate familiarity among staff
members and is strictly prohibited.
Respondent terminates Davis35
Nicholas Davis reported to work on June 22, 2015 at the Bienville Street office. A
number of employees had been told to report to this location for a meeting. CEO Darrin Harris
addressed the employees. Harris threatened to sue any employees who slandered him. At some
point Harris met individually with Davis. Harris told Davis that Davis was discussing Harris’ 40
sexual orientation and that this was not a subject for discussion by employees. Although, it is
not clear from the record, I infer that Harris fired Davis on the spot.9

8 The General Counsel’s brief states that Ms. Rowan did not possess the text messages, Br. at p. 29.
However, she saw them, reviewed the content and discussed them with Branch, Tr. 133.
9 Harris did not testify in this proceeding.
JD–69–16
7
The discipline documentation notice attached to Davis’ termination letter lists the
following reasons for his discharge:
Incident 1: After receiving Mr. Davis’ completed background check, it was determined
that he had pending charges on his record. Mr. Davis was advised by the CEO, Darrin 5
Harris, to produce a personal explanation and accompanying court documents to maintain
compliance with OBHS/CSoC requirements. He did not produce these documents,
disobeying a direct request form his Supervisor.10
Incident 2: It was brought to attention of the UMT that Mr. Davis had engaged in several 10
in appropriate conversations with fellow employees, particularly Ms. Zipporah Minor,
Central Office Administrator. These conversations were proven to include gossip and
misinformation regarding Ekhaya employees/Supervisors professional abilities, salaries,
and personal lives, including but not limited to a belief of undeserved promotions,
accusations of mistreatment of an employee based on personal likes/dislikes, and 15
assumptions about sexual orientation and inter office relationships. Multiple texts
regarding these topics were continually exchanged between Mr. Davis and Ms. Minor
leading to what would be considered an inappropriate familiarity among staff members
and is strictly prohibited. Mr. Davis was also specifically advised not to cultivate
friendships with other employees to maintain the strictest standards of privacy and 20
confidentiality of the CEO, which he deliberately disobeyed.
Section 8(a)(1) violations arising out of Vanshawn Branch’s meeting with Minor on June 18,
2015 and the termination notices sent to Minor and Davis
(complaint paragraphs 5(a)-(h).25
Paragraph 5(a) & (b): The complaint alleges that Respondent, by Vanshawn Branch,
violated the Act by telling employees that they were prohibited from talking to each other and
other staff. The General Counsel’s brief, however, focuses on Branch’s text to Minor on the
evening of June 18. Branch informed Minor that she was temporarily on administrative leave 30
pending further investigation. He then wrote, “Please do not have any conversation with staff or
it could possibly effect the outcome of the investigation,” G.C. Exh. 8.
In Caesar’s Palace, 336 NLRB 271, 272 (2001) the Board held that the employer did not
violate Section 8(a)(1) by instructing employees not to discuss an ongoing drug investigation. It 35
observed that employees have a Section 7 right to discuss discipline or disciplinary
investigations. However, it found that Caesar’s established a substantial and legitimate business
justification which outweighed its infringement on employees’ rights. The Board in footnote 5
made it clear that it is the Respondent’s burden to establish a legitimate and substantial business
justification.40
In Hyundai America Shipping Agency, Inc. 357 NLRB 860 (2011) the Board found the
employer violated Section 8(a)(1) by promulgating, maintaining and enforcing an oral rule

10 There was a dispute between Davis and Respondent as to what sort of documentation he had to
provide Respondent regarding a pending criminal charge. There is no need to go into this dispute in any
detail since there is no relationship to any activity protected by the Act.
JD–69–16
8
prohibiting employees from discussing with other persons any matters under investigation by its
human resources department. This rule was a blanket prohibition, applying to all matters
regardless of the circumstances. The employer’s rule in Boeing Co., 362 NLRB No. 195 (2015),
cited by the General Counsel, was similarly broad.
5
What the Board has not clearly articulated is the nature of the employer’s burden in such
cases as this in which an employer is undertaking an investigation of specific employee
misconduct to determine whether any adverse personnel action is to be taken.
I find that Branch’s explanation that conversations with other employees could possibly affect
the outcome of the investigation satisfies Respondent’s burden. Thus, I dismiss complaint 10
paragraph 5(a) and paragraph (b) that allege that Branch’s text constituted an illegal threat..
In Caesar’s Palace, an employer witness testified that it never explained the purpose of
the confidentiality instruction to the employees during the investigation, 336 NLRB at 273. The
Board appears to have inferred from the circumstances of the investigation that the employer had 15
a legitimate and substantial justification for its confidentiality instructions. I believe this could
be inferred in many investigations in which the dangers of evidence being destroyed, fabricated,
and witness intimidation are obvious. In this vein I would note the Rule 615 of the Federal
Rules of Evidence, in requiring a judge to order the sequestration of witnesses upon the request
of any party, is a tacit recognition of this danger.20
Complaint paragraphs 5(c)-(h)
These complaint allegations are based on the termination letters and disciplinary
documentation sent to Minor and Davis on June 22, specifically the following reasons given for 25
their terminations:
several inappropriate conversations with fellow employees, particularly Mr. Nicholas
Davis, Executive Assistant to the CEO. These conversations were proven to include
gossip and misinformation regarding Ekhaya employees/Supervisors’ professional 30
abilities, salaries, and personal lives, including but not limited to a belief of undeserved
promotions, accusations of mistreatment of an employee based on personal like/dislikes,
and assumptions about sexual orientation and inter office relationships. Multiple texts
regarding these topics were continually exchanged between Mr. Davis and Ms. Minor
leading to what would be considered an inappropriate familiarity among staff members 35
and is strictly prohibited.
Minor and Davis both understood that they were terminated or going to be terminated
because of their text message exchange on June 18, G.C. 21. Despite the fact that I find that
these texts were not protected, the language of the termination letters in suggesting that they 40
were terminated due to gossip and misinformation about employees/supervisors’ salaries,
discussing the work abilities of supervisors, discussing the work abilities of fellow employees,
discussing whether employees should receive promotions and mistreatment of an employee,
violates Section 8(a)(1). They certainly were entitled to talk about employees’ and supervisors’
salaries and other terms and conditions of employment unless they were maliciously spreading 45
information they knew to be false. Joliff v. NLRB , 513 F. 3d 600 (6th Cir. 2008). Thus, I find
Respondent violated Section 8(a)(1) as alleged in paragraph 5(c, d, e, f and h).
JD–69–16
9
On the other hand, I dismiss paragraph 5(g) which alleges that Respondent informed its
employees that they were being discharged for discussing the unfairness of the Continued
Communication Policy with other employees. The Continued Communication Policy was not
mentioned in the disciplinary documentation. There was no reason for Minor or Davis to 5
conclude from the documentation they received that Minor’s text which may have inferentially
criticized that policy had anything to do with their terminations, or that Respondent was
prohibiting discussion of that policy.
Allegedly Violative Rules10
Complaint paragraph 6 alleges that Respondent maintained a rule prohibiting employees
from discussing salaries. Respondent maintained no such rule. The General Counsel relies on
the conversation between Branch and Minor on July 18 to support this allegation. As stated
earlier in this decision, I find that Branch was discussing salary information that Minor became 15
privy to in the course of her official duties and disseminated without the consent of other
employees. I conclude that Branch did not violate the Act in prohibiting Minor from doing so,
Ashville School, Inc., 347 NLRB 877, fn. 1 (2006); Clinton Corn Processing Company, 253
NLRB 622 (1980).11
20
The General Counsel alleges in complaint paragraph 7 that the following rules set forth in
Respondent’s handbook and corporate compliance program violative Section 8(a)(1) of the Act:
(a) Subject: Conduct and Work Rules
25
To ensure orderly operations and provide the best possible work environment,
Ekhaya Youth Project expects employees to follow rules of conduct that will
protect the interests and safety of all employees and the organization. It is not
possible to list all the forms of behavior that are considered unacceptable in the
workplace. The following are some examples of infractions of rules of conduct30
which may result in disciplinary action, up to and including termination of
employment:
6. Boisterous or disruptive activity.
35
(b) Subject: Professional Ethics
Ekhaya Youth Project staff shall maintain professional ethics and standards at all
times and will adhere to the highest moral standards while on duty working.
Recognize that the youth and families may have suffered a dramatic emotional40
and/or physical trauma. Ekhaya Youth Project staff are their closest contact for
emotional and physical support. Staff must meet their needs for attention and/or
assistance without fail, if therapeutic goals are to be attained.

11 These cases are discussed in more detail below with regard to the issue of whether Minor engaged
in any protected concerted activity.
JD–69–16
10
8. Inappropriate familiarity among staff members (will not occur in the facility
or during any program function).
11. Staff will strive to work together as a cohesive team, supporting one another
and administration at all times.5
13. Staff will protect the privacy of other staff at all times.
14. Staff will not give information of any nature about other staff to any
unauthorized individual…10
(c) Subject: Non-Disclosure
The protection of confidential business information and trade secrets is vital to the
interests and the success of Ekhaya Youth Project such confidential information15
includes, but is not limited to, the following examples:
• • •
3. Financial information
20
4. Personnel information
• • •
(d) Subject: Disciplinary Action/Employee Performance Improvement Process:
25
B. Grounds for Discipline
a. The following reasons constitute grounds for dismissal:
ix. The Employee has engaged in conduct on or off duty that is of
such a nature it causes discredit to the agency.30
(e) Ekhaya Youth Project Corporate Compliance Program...
K. Personal and Confidential Information:
35
• Ekhaya. Youth Project will protect personal and confidential information
concerning the organization's system, employees, and youth and
families...
As noted on page 3 of this decision complaint paragraph 8(a) alleges that Respondent 40
violated the Act by requiring employees to copy Branch on every email forwarded or replied to
by any staff member. Paragraph 8(b) alleges that Respondent also violated the Act on December
18, 2015, when Branch sent the following email to Ekhaya staff:
The performance of your duties as an EYP Corporate Office employee45
which is conducted by e-mail must be conducted using EYP's e-mail
system (ekhayafso.org and/or your ekhaya gmail account [first initial, last
JD–69–16
11
name eyp@gmail.com]) and not your personal e-mail. All e-mail which
is sent by you and/or which is replied to or forwarded by you using EYP's
e-mail system must be copied to the COO; in the event that an original
email is received by you on EYP's e-mail system and the COO is not
copied, you must forward a copy of that e-mail to the COO and copy the5
COO with any response on EYP's e-mail system. Responsiveness is
required during office hours of 9:00 AM — 6:00 PM and the promise to
communicate will be exemplified via operations of the policy stated in this
email.
Analysis1210
The heart of this case is the General Counsel’s contention that Respondent violated the
Act in terminating Minor and Davis. The rest of the case, while not unimportant, is “collateral
damage” emanating from the terminations.
15
Section 8(a)(1) provides that it is an unfair labor practice to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in Section 7. Discharging an employee
because they engaged activity protected by Section 7 is a violation of Section 8(a)(1).
Section 7 provides that, "employees shall have the right to self-organization, to form, 20
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ... (Emphasis added)"
In (Myers II) 281 NLRB 882 (1986), the Board held that "concerted activities" protected 25
by Section 7 are those "engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself." However, the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is as much concerted activity as is
ordinary group activity.
30
However, not every conversation that touches upon wages, hours and working conditions
constitutes protected concerted activity. The conversation must be part of an effort to initiate or
promote concerted action about such conditions.
Activity which consists of mere talk must, in order to be protected, be talk looking 35
toward group action. If its only purpose is to advise an individual as to what he
could or should do without involving fellow workers or union representation to
protect or improve his own status or working position, it is an individual, not a
concerted activity, and if it looks forward to no action at all, it is more than likely
to be mere ‘griping.”40
Mushroom Transportation Company v. NLRB, 330 F. 2d 683 (3d Cir. 1964).

12 My analysis of the allegations in complaint paragraph 5 is set forth earlier in this decision. I will
not repeat it.
JD–69–16
12
I find that the terminations of Minor and Davis did not violate the Act.13 Although
Respondent’s investigation and the termination documents “muddy the waters,” I find that the
two were terminated for the text messages of June 18 and Minor’s subsequent discussion of their
content with fellow employees.14 The conduct for which they were terminated was not protected. 5
Assuming that some of this conduct was protected, they sacrificed that protection and
demonstrated that they were “unfit for further service,” either under the standard set forth in
Atlantic Steel Co., 245 NLRB 814 (1979) or the standard set forth in NLRB v. Electrical Workers
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) Linn v. Plant Guards Local 114, 383
NLRB 53 (1966).10
In reaching these conclusions, I rely significantly on the Board’s decision in Lutheran
Social Service of Minnesota, 250 NLRB 35 (1980) dismissing the General Counsel’s complaint
in circumstances somewhat similar to the instant case. In doing so, I also rely in large part on the
conclusions of Administrative Law Judge Bernard Ries, which were adopted by the Board.15
With regard to the alleged discriminatees in that case, Judge Ries observed:
While the conduct of Johnson and Schaefbauer was loosely concerted, it is hard to say
that it was directed toward any particular objective. …they made no effort to invite the 20
other employees into some informal coalition; they formulated no agenda; they filed no
grievances; and they made no demands. What they did, essentially was to complain,
criticize and carp from, as it were, the sidelines.
The statute protects protests in which there inheres action or the possibility of action.25
…such conduct, though jointly engaged in by two or more individuals, really amounts to
no more than “mere griping,” which the Act does not seek to protect.
Id. at page 41.30
General complaints about the competence of upper level managers are normally
unprotected in that they do not relate to wages, hours and other terms and conditions of
employment, Retail Clerks Union, Local 770, Retails Clerks International Association, 208
NLRB 356, 357 (1974). Davis’ text messages and Minor’s subsequent discussion with fellow 35
employees provides no reason to depart from the normal rule. They had no other purpose than to
demean Vanshawn Branch.
The General Counsel’s reliance on Salon/Spa at Boro, Inc., 356 NLRB 444 (2010) is
misplaced. In that case employees voiced concern about how management treated other 40

13 Because I dismiss the complaint allegation that Respondent violated the Act in terminating Davis, I
will not address Respondent’s contention that this allegation is barred by Section 10(b) of the Act.
14 This case is somewhat unusual in that the termination documents give pretextual reasons for the
terminations that could be violative. However, Davis’ discussion with CEO Harris and Minor’s with
Branch makes it abundantly clear that both Davis and Minor were fired for the substance of the text
messages and Minor’s discussion with her coworkers afterwards of the relationship between Harris and
Branch.
JD–69–16
13
employees. However, it was clear that their action was a prelude to group action. This is not the
case with regard to Minor and Davis’ expressed concerns with regard to Branch’s attitude
towards Yvette Frasier.
Thus, to be protected by Section 7, conversation between two or more employees about 5
wages, hours and working conditions must be seeking to initiate, induce or prepare for group
action, Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), slip opinion at p. 3. There is
no basis for concluding that the text message exchange between Davis and Minor on June 18,
2015 meets this standard. Minor, as shown by Kendra Graves’ email to Vanshawn Branch,
discussed these texts or showed them to other co-workers. There is nothing protected in her 10
doing so. Their only objective was to disparage Branch.
Davis did not engage in any other activities that could be deemed protected by the Act.
Even assuming that he and/or Minor engaged in protected activity, I find they forfeited those
protections. The texts and Minor’s discussion afterwards were flagrantly disloyal and wholly 15
incommensurate with any grievances she or any other employee had with Branch, Five Star
Transportation, Inc., 349 NLRB 42, 44-47 (2007) enfd. 522 F. 3d 46 (1st Cir. 2008). Further,
any concerted activity engaged in by Minor is outweighed by the employer’s right to maintain
order and respect, NLRB v. Thor Power Tool Company, 351 F. 2d 584, 587 (7th Cir. 1965),
Southwestern Bell Telephone Company, 200 NLRB 667, 700 (1972).20
Minor’s alleged protected activity other than the text messages
Aside from the text messages and Minor’s related conversation with employees
afterwards, the only arguable protected activity she engaged in was discussing salaries. 25
According to Minor, she only discussed her own salary in the context of how happy she was to
be being paid $17 an hour. According to Respondent, Minor, while assisting in the preparation
of Respondent’s payroll, discussed Frasier’s salary without Frasier’s permission. Either way, I
find Minor did not engage in any protected concerted activity. In neither version was her
conversation seeking to initiate, induce or prepare for group action.30
Moreover, Minor’s disclosure of another employee’s wage rate, which she gained access
to while performing her official duties in preparing Respondent’s payroll is not protected,
Ashville School, Inc., 347 NLRB 877, fn. 1 (2006); Clinton Corn Processing Company, 253
NLRB 622 (1980). The facts in Ashville School are quite similar to the instant case. The 35
alleged discriminatee was Respondent’s payroll accountant. She disclosed wage and salary
information to other employees that she possessed by virtue of her official position. The Board
held that the employer did not violate the Act in terminating her for disclosing this information.15
Respondent’s disciplinary documentation notice regarding Minor states as a reason for 40
her discharge, “gossip and misinformation regarding Ekhaya employees/Supervisors’
professional abilities, salaries, and personal lives, including but not limited to a belief of
underserved promotions, accusations of mistreatment of an employee based on personal

15 Although the Board stated the Ashville’s payroll accountant knew the confidential nature of the
information she disclosed, I do not think the absence of such evidence in this case regarding Minor makes
the case materially distinguishable.
JD–69–16
14
like/dislikes…” Respondent’s investigation and the documentation for the discharges confuse
the issues in this case. The record is very clear that Minor and Davis were terminated in
response to Branch, and then Harris, learning about the text messages of June 18 and Minor’s
conversations about their personal lives immediately afterwards. I find that Minor did not engage
in any protected activity and there is no indication that Respondent believed that she did so. 5
Further, I find that Respondent did not terminate Minor or Davis in retaliation for any protected
activity.
Allegedly illegal rules
10
The Board has held that an employer violates Section 8(a)(1) when it maintains a work
rule that reasonably tends to chill employees in the exercise of their Section 7 rights, Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). A rule is unlawful if it explicitly restricts activities
protected by Section 7. If this is not true a violation is established by a showing that 1)
employees would reasonably construe the language to prohibit Section 7 activity; 2) that the rule 15
was promulgated in response to protected activity or 3) that the rule has been applied to restrict
the exercise of Section 7 rights, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
In Lutheran Heritage the Board retreated somewhat from its prior decisions in light of the
decision of United States Court of Appeals for District of Columbia in University Medical 20
Center v. NLRB, 335 F. 3d 1079 (D.C. Cir. 2003). In that case the Court declined to enforce the
Board’s decision at 335 NLRB 1318 (2001) regarding a rule prohibiting “disrespectful conduct.”
In Lutheran Heritage, the Board stated that it would not conclude that a reasonable employee
would read a rule to apply to Section 7 activity simply because the rule could be so interpreted.
25
In assessing the rules alleged herein to violate the Act, the only issue is whether they
would reasonably be construed to prohibit Section 7 activity. None of these rules explicitly
prohibit Section 7 activity and none were promulgated in response to protected activity or have
been applied to restrict the exercise of Section 7 rights.
30
With regard to these rules I find that following violate Section 8(a)(1):
The rule prohibiting “boisterous or disruptive activity in the workplace.” “Disruptive” in
particular would reasonably be read to encompass concerted activity aimed at changing wages,
hours and/or other working conditions.35
The rule prohibiting inappropriate familiarity among staff members. In the absence of
clarification this would reasonably inhibit employees from discussing wages, hours and other
terms and conditions of employment.
40
The rule prohibiting the disclosure of personal information. This would reasonably
inhibit employees from discussing wages, hours and working conditions in light of the separate
prohibition requiring employees to protect the privacy of other staff.
Particularly given the nature of Respondent’s business, I find that none of the other 45
allegedly illegal rules violate the Act. The rule requiring the protection of personal and
confidential information regarding the company’s system, employees, and youth and families
JD–69–16
15
appears quite reasonable since Ekhaya staff may have access to such information about its
clients and employees. As to the latter, Respondent employs individuals with prior felony
convictions.
The General Counsel’s citation to Vanshawn Branch’s testimony at page 85 of the 5
transcript is taken out of context. At this point Branch was referring to disclosure by an
employee acting in his or her official capacity, not employees discussing their wages voluntarily.
There is nothing violative about prohibiting an employee, while engaging in their official duties,
from disclosing an employee’s wage rate to other employees, without the consent of the
employee whose wage rate is being disseminated, Ashville Schools, supra.10
Vanshawn Branch gave a perfectly legitimate reason for requiring all correspondence to
be copied to him; i.e., so that he can be assured that assigned tasks are completed. There would
be no reason for employees to believe that this rule was initiated to inhibit protected conduct, or
that it would do so. This is so because employees were told upon being hired that all their emails 15
would be accessible by management. In this vein, I would note that all employees of the
National Labor Relations Board are informed daily that they have no expectation of privacy
regarding use of their government computer. When it comes to government work performed on
government computers, or Ekhaya work performed on Ekhaya computers, Orwell’s Big Brother
is watching. He does not violate the Act by doing so.20
It is difficult to see also how the requirement that all company business be performed via
company email violates the Act. Ekhaya is regulated by a state of Louisiana entity, the Office of
Behavioral Health. It thus appears imperative that all Ekhaya business be on its computers for
inspection by that agency. In this vein, I note the Federal Records Act was amended in 2014 as 25
follows:
An officer or employee of an executive agency may not create or send a record
using a non-official electronic messaging account unless such officer or employee—
(1) copies an official electronic messaging account of the officer or employee in 30
the original creation or transmission of the record; or
(2) forwards a complete copy of the record to an official electronic messaging
account of the officer or employee not later than 20 days after the original creation or
transmission of the record.
35
I find that Respondent does not violate the Act by requiring all company business to be
performed on the company server or maintaining access to all emails on that server. Although
cited by both parties, I conclude that Purple Communications, 361 NLRB No. 126 (2014) has no
relevance to the instant case. An employer which allows employees to use its email system for
Section 7 purposes is not required to accord privacy to such uses.40
Summary of Conclusions of Law
Respondent violated Section 8(a)(1) of the Act by maintaining overly broad rules
prohibiting, “boisterous and disruptive conduct,” inappropriate familiarity among staff members 45
and prohibiting the disclosure of personal information.
JD–69–16
16
Respondent violated Section 8(a)(1) by sending termination letters to Nicholas Davis and
Dalanta Zipporah Minor which could be reasonably read as suggesting that they were terminated
due to gossip and misinformation about employees/supervisors’ salaries, discussing the work
abilities of supervisors, discussing the work abilities of fellow employees, discussing whether
employees should receive promotions and mistreatment of an employee.5
Respondent did not violate the Act in discharging Nicholas Davis and Dalanta Zipporah
Minor.
Remedy10
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16
Order
20
The Respondent, Ekhaya Youth Project, New Orleans, Louisiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
25
(a) Restricting the right of employees to discuss wages, hours and other terms and
conditions of employment;
(b) Maintaining overly-broad rules that would reasonably be read to restrict the right of
employees to discuss wages, hours and other terms and conditions of employment, including its 30
rules that ambiguously bar “boisterous and disruptive” activity, “inappropriate familiarity
among staff members” and the disclosure of personnel information.
(c) In any like or related manner interfere with, restrain or coerce employees in the
exercise of the rights guaranteed by Section 7 of the National Labor Relations Act.35
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind and/or revise Respondent’s employee handbook and corporate compliance
program so as to make it clear that employees are free to discuss wages, hours and other terms 40
and conditions of employment.

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
(b) Within 14 days after service by the Region, post at all its
attached notice marked “Appendix.” Copies of the notice, on forms provided by th
Director for Region 15, after being signed by the Respondent’s authorized repres
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical 5
posting of paper notices, the notices shall be distribu
on an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of 10
business or closed the facility involved in these proceedings, the Respondent shall duplicate
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since June 1
(c) Within 21 days after service by the Region, file with the Regional Director a sworn 15
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C.
20

25
17
facilities copies of the
ted electronically, such as by email, posting
8, 2015.
, July 15, 2016
Arthur J. Amchan
Administrative Law Judge
JD–69–16
e Regional
entative, shall
and
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT restrict the right of employees to discuss wages, hours and other terms
and conditions of employment.
WE WILL NOT Maintain overly-broad rules can be reasonably be interpreted to prohibit
employees from discussing wages, hours and other terms and conditions of employment.
WE WILL NOT In any like or related manner interfere with, restrain or coerce
employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations
Act.
WE WILL rescind and/or revise our employee handbook and corporate compliance
program so as to make it clear that employees are free to discuss wages, hours and other terms
and conditions of employment.
EKHAYA YOUTH PROJECT, INC.
(Employer)
Dated ___________________ By _____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3408
(504) 589-6361, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/15–CA–155131 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (504) 589-6389.